October 26, 2016

Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?

It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States. In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.

But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders. Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced. For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."

Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders. But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).

Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud. These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment. And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:

During the past five years, the rate of within range sentences for §2B1.1 offenders has steadily decreased (from 54.4% in fiscal year 2011 to 42.4% in fiscal year 2015).

During the past five years, the rate of within range sentences for tax fraud offenders has decreased (from 37.8% in fiscal year 2011 to 25.8% in fiscal year 2015).

These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years. But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years. Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.

Comments

My spouse is a first time non-violent white collar offender who chose to go to trial. His danger to society was deemed so low that he was never even formally arrested, and was not even placed with a probation officer until 4 months after found guilty. (it took a year between the trial and sentencing, and I guess the prosecutor was getting annoyed with some of the post trial filings and finally asked for formal probation) He was ordered to turn himself in on his own recognizance.
In prison, he's had zero problems. He has lost his professional license, along with all the other collateral damage that comes from a conviction. He has forfeited a huge sum of money. All of that is heavy payment for his "crimes". (he protested all the way to the Supreme Court, but we know the low possibility of relief from that entity)
He is considered "elderly" (over 50) in the prison system...and there's been numerous posts on how our prison systems are becoming "nursing homes" for offenders unlikely to commit more crimes, and that high cost to
the taxpayer.
There's the quote that white collar offenders "should receive a short, but certain term of incarceration..."
How long did he get? TWENTY FIVE YEARS. Not due for release until 2034.
And no, you've never heard of him.
But what is the point of such a long sentence?
The sentencing commission did a report that our country only gives long, harsh sentences to the most violent and egregious criminals. But even they have to admit that there's a smaller number of white collar offenders who have fallen into the mix.
Even the slight changes the commission has proposed over the last couple of years will do zero to help my spouse or others similarly situated. Where is it possible to turn for relief? Many crimes: mail fraud, bank fraud, etc. allow 20 year sentences...so easy to give looong sentences "within range"

Posted by: folly | Oct 27, 2016 11:48:02 AM

The summaries seem to show that the change to "in guidelines" sentences is mostly because of an increase in "below guideline" sentences. The increase in "below guideline" sentences seems to come equally from departures requested by the government and departures not requested by the government. Additionally, the minimum guideline sentences seems to be increasing.

While inferring motivations from actions is always risky (especially as coincidence does not equal causation), it would seem that the desire to be "smarter" is influencing property crimes as well as drug crimes with: 1) the government being more willing to file for a downward departure; 2) the courts being more willing to sentence beneath the guidelines even if the government does not make the request; and 3) the U.
S. government (exercising its right to dump criminals into the state system) being slightly more selective as to what cases merit federal prosecution.

Posted by: tmm | Oct 27, 2016 2:32:26 PM

My husband is a first-time offender who committed his fraud 'offense' in 2007. He settled a civil complaint with the SEC. In between that time and being charged with a criminal offense in 2012, he received a Masters degree in teaching and began working with special needs boys. He pled guilty after agonizing over whether to put our family through a trial. After receiving scores of support letters from teacher, parents, and being an exemplary pre-trial person......the judge sentenced him to 15 years, the maximum allowed for his plea deal. So......a non-violent, over 50 teacher of special needs children will be out in his 60's..... so, maybe the 'smart on crime' effect will help for some people caught up in this awful system, and I hope it does, but many judges appear to still choose punishment over any kind of reasonable sentence for a white collar offender.

Posted by: sadness | Nov 5, 2016 8:54:55 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB